DWI/DUI Blog: Courts Provide Clarity Regarding Test Refusal Cases

By Grant Borgen of Bird, Jacobsen & Stevens posted in DWI/DUI on Tuesday, November 1, 2016.

In a previous blog post, I wrote about how the Minnesota Court of Appeals recently ruled that it is unconstitutional for the State to prosecute a person for refusing a warrantless blood or urine test in a routine DWI arrest. Since that blog post, there has been a flurry of court activity as it pertains to warrantless blood, breath, and urine testing during DWI arrests. This blog provides an update as to where things stand in the eyes of Minnesota's DWI law.

It is important to begin by discussing some applicable law. Minnesota is one of the few states that criminalizes a person's refusal to submit to chemical testing during a DWI arrest. This act--test refusal--implicates the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution. These constitutional provisions provide that a person has the right to be free from unreasonable searches and seizures. Subject to certain exceptions, warrantless searches and seizures are per se unreasonable and therefore unconstitutional.

Under federal and state law, blood, breath, and urine testing has been recognized as a "search." Therefore, to be constitutional, a police officer requesting a chemical test during a routine DWI arrest must have either a warrant or warrant exception to justify the test request. The absence of a warrant or warrant exception renders the search unconstitutional.

These constitutional provisions have recently come under fire in test refusal cases. For years, Minnesotans were prosecuted for test refusal without much issue. This was because the Minnesota Supreme Court had concluded that warrantless blood, breath, and urine testing was permissible under the "exigent circumstances" warrant exception. Generally speaking, the "exigent circumstances" exception provides that police officers do not need to obtain a warrant when there is an emergency situation. The Minnesota Supreme Court had ruled that the natural dissipation of alcohol and drugs from a person's blood created a "per-se exigency" and therefore justified a warrantless search.

This "per-se exigency" was turned on its head in 2012. In a case called Missouri v. McNeely, the United States Supreme Court ruled that there is no such thing as a "per-se exigency." Exigent circumstances may apply in a DWI case, but the natural dissipation of alcohol and drugs from a person's blood by itself is not enough. This put prosecutors in a bind, as officers were either required to obtain a warrant or find a new warrant exception.

After the McNeely case, when a person refused a chemical test during a routine DWI arrest, Minnesota law enforcement officers rarely obtained or attempted to obtain a warrant. Instead, they simply requested a chemical test and left things for prosecutors to sort out. Prosecutors quickly argued another warrant exception applied: "search incident to arrest."

Under the "search incident to arrest" exception, a police officer may perform a warrantless search of an arrested person to protect officer safety, to prevent escape, or to prevent the destruction of evidence. After many court battles, we now have clarity as to whether search incident to arrest justifies a warrantless blood, breath, or urine test in a routine DWI arrest. The exception supports a warrantless breath test request but not a warrantless blood or urine test request.

So what's the takeaway for test refusal cases? If a law enforcement officer has a warrant for a blood, breath, or urine test and you refuse to provide a sample, you may be prosecuted for test refusal. If a law enforcement officer requests a warrantless breath test and you refuse to provide a sample, you may be prosecuted for test refusal. However, if an officer requests a warrantless urine or blood sample in a routine DWI arrest, the State may not prosecute you for your refusal.

DWI law is complex. If you have been arrested for or charged with DWI, it is important to contact an attorney right away. Grant Borgen of Bird, Jacobsen & Stevens, P.C. handles DWI/DUI cases and is always available for a free consultation.

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